The great worker hives where law and “justice” is repurposed and delivered have turned ghostly. The courts, barristers chambers, law firms – the machinery of the third arm of government – lie still, victims of a plague that has sent everyone home.
Not quite everyone. Many judges are still trooping into empty courtrooms to hear cases with lawyers and witnesses appearing remotely, courtesy of electronic devices. Criminal trials have all but ceased, with hearings limited to cases with defendants in custody. Civil proceedings are barely alive.
The delays in the delivery of justice will linger well beyond the time when a modicum of normality returns to the functions of society.
In March, when everyone was quite new to courtroom remoteness, one barrister in Sydney circulated his experience after using the supreme court’s virtual facilities. His name has been redacted to protect his future career:
The judge couldn’t see anyone; lines dropped out regularly; witnesses didn’t know where to go; ... subpoenaed material could not be accessed by anyone; feedback [from computers] made it impossible to proceed.”
The upshot was that a two day case would likely spin out to six days with the plaintiff charged fees for extra hearing allocations. He ended: “It’s not anyone’s fault and one day it will be sorted out, but for now ... my view ... try and stay away.”
Another barrister told colleagues of his experience at Campbelltown court: the telephone dial-in for a criminal listing “is something of a fiasco” and communicating with clients is impossible as a significant number are in custody and can only give instructions electronically.
Because it is impossible to obtain instructions in a “rapidly evolving situation” this is akin to “playing ethical roulette”. Already there is an anticipated wave of “corona appeals”.
The appeals in the Roger Rogerson and Glen McNamara murder case have been put off until sometime in the future. Similarly, the Ian Macdonald, Edward and Moses Obeid coalmining conspiracy trial has been adjourned by Justice Elizabeth Fullerton until 31 August.
The judge outlined the problems in this case with a court book exceeding 7,500 pages, an additional 79 documents marked for identification and where witnesses would have to give evidence by audio-visual link.
Hearings were marred by lines dropping out in the “virtual courtroom” and repeated efforts to dial back in. The barrister for Macdonald advised that his client, who attended the trial at home, had limited computer skills and could not type quickly enough to provide ongoing instructions.
Further, the barrister’s six-year-old son was being home-schooled and the brief’s wife had injured her back. To cap it all, Macdonald’s funding may run out which “might leave him unrepresented were the proceedings to be further delayed”.
Fullerton said that the accused’s right to a fair trial would be at risk if continued under the regime imposed by the public health restrictions. “I am of the view that a trial of the accused in a virtual courtroom is impractical.”
In the trial of Kings Cross solicitor Michael Croke that straddled the time both before and during the restricted process, the jurors had to be spread throughout the public gallery, the accused stayed at home, appearing by video link, and crime reporter Kate McClymont was perched in the dock covering proceedings.
Stephen Murray has been reporting federal court defamation cases from home via Microsoft Teams with camera vision of the judge, the lead counsel and witnesses. He says that the video and the sound is generally good and people seemed adept at using the mute and hide functions. Murray adds that witnesses giving evidence at home might have access to their own computer and documents.
In shorter trials with relatively few witnesses the technology has a better chance of working smoothly.
One lawyer speculated, what’s to stop a big menacing bikie exerting pressure in the same room off-camera while a witness gave evidence in a criminal case from home?
Former Special Air Service soldier Ben Roberts-Smith has had the dates for his six-week defamation trial vacated. The Nine newspapers are defending one of the most anticipated federal court media trials of the year, which was due to start on 15 June. A mixture of national security concerns and the pandemic has derailed the proceedings, as the publishers say it is not possible for security documents to be displayed securely on screens or hear some witnesses by video.
Courts across the country are operating in a hybrid manner, adjournments being the order of the day.
Family law cases are subject to screeds of complex arrangements affecting parenting orders, changes to registry services, face-to-face protocols, electronic filing and the clearing of buildings.
The high court says it will not sit in Canberra or on circuit in April, May and June. Special leave and urgent matters are being dealt with by videolink, which gives the judges more time to prepare their reasons, for which George Pell must be thankful.
Offences against the commonwealth have to be tried by juries, and this means the virus protocols will end in a long backlog. A commonwealth offence committed for trial today is unlike to come on before mid-2021.
Magistrates are rushing about looking for courts with audio-videolink facilities, and rejigging hearing dates and bail decisions on the run. There’s a push on for negotiated pleas to mitigate the impact and at the same time the courts are seeing a rise in the unexplained non-appearance of parties and witnesses.
NSW’s chief magistrate, Graeme Henson, said that his court’s capacity to “continue to operate effectively across the breath of the jurisdiction is being systematically compromised by progressive restrictions accounted by the government”.
Defended criminal cases with a hearing date, where the accused is not in custody, are suspended until they can get a mention in September. All local court civil cases listed in Sydney’s Downing Centre between 30 March and 30 September have been “abandoned”. AVOs have effectively been delisted until May, except in the most urgent cases. Bailees are answering their bail at solicitors’ offices, which effectively are acting as face masks for the courts.
The government of the Australian Capital Territory has abolished juries – at least for now.
Lawyer billings have plunged and this normally prosperous business model is a shadow of its former self. The NSW bar association says its members are so hard-up that it has asked the commonwealth and state governments for handouts. Membership and practising certificate fees have been slashed by the bars and law societies.
Big law firms such as Minter Ellison and Ashurst, among others, have done the unthinkable and cut partners’ pay by between 20% and 50% and urged their rank and file to take leave. Partners at the big law shops also must be nervous about potential calls to fund working capital. Over a dozen large firms have applied to the Fair Work Commission to reduce the hours of employed solicitors and other staff and to cut their pay.
With lawyers making submissions from their bedrooms, the sounds of domestic animals and children are introduced into proceedings, along with vision of alarming home decor. A level of decorum is maintained as courts insist no one appears in their pyjamas or Hawaiian shirts. The minimum is bar jacket and jabot while some courts still want briefs in gowns.
In its battle against germs the NSW civil and administrative tribunal advised its members to bring in their own cleaning wipes as staff were trying “to source wipes with no success so far”.
A supreme court judge in Western Australia wanted everything disinfected before he sat in court. The administrator of Barristers Chambers Ltd in Brisbane sent out an email, distressed about overcrowding in the building’s lift.
“The lift then stopped on B1 and a barrister got in talking on his phone with total disregard for others that were already in there.”
Rebecca Treston QC, the president of the Bar Association of Queensland, in contrast to the NSW bar’s call for a taxpayer subsidy, said her members should do more pro-bono work while everyone was going through a critical upheaval. There was a demand for lawyers to handle employment and domestic violence issues, in particular.
If ever we emerge from the pandemic vaguely intact, does the delivery of the law “snap back” to its old ways? Sydney barrister Ian Neil SC thinks the opportunity is here for the law to take a giant forward step for mankind.
Video links and new technology should now become the norm, not just trotted out for special crises. People have become accustomed to working over the phone or on video. “This is a different style of advocacy in law, and there is much to learn and adapt to here,” Neil told Lawyers Weekly.
Justice Michael Lee in the federal court this month said he was pleased with the way cases were being successfully managed under the emergency arrangements.
Just because one cannot have a hearing conducted in accordance with traditional practices and procedures, does not mean that the court’s judicial function cannot be formed effectively where it is necessary to do so. As Voltaire observed, one must ensure the perfect does not become the enemy of the good.”
The revolution has arrived and not everything will revert to the old ways. It would be foolish to say that this means lawyering will be quicker and cheaper. That might be too much to hope.
It may become more efficient – particularly if there is more application of uniformity in the technology across the court systems, which is conducted variously by phone, audio-video link, Skype, Zoom, Microsoft Teams and combinations of any of those. The security for conferencing and the handling of documents also need to be tightened.
At least one area of the law is undergoing a mini-boom – the preparation of wills. Suddenly, human beings are feeling much more fallible.
• Richard Ackland publishes the law journals Justinian and Gazette of Law and Journalism. He is a Gold Walkley winner and a former host of Media Watch and Radio National’s Late Night Live
